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EXHIBIT 99.5
SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY is dated as of September 29, 2003 and entered into
by THE UNDERSIGNED (each a "GUARANTOR", and together with any future
Subsidiaries executing this Subsidiary Guaranty, being collectively referred to
herein as the "GUARANTORS") in favor of and for the benefit of Bank of America,
N.A., as Agent for and representative of (in such capacity herein called the
"GUARANTIED PARTY") the several financial institutions (the "LENDERS") from time
to time party to the Credit Agreement referred to below and the Selected
Revolving Lenders, and for the benefit of the other Beneficiaries (as
hereinafter defined).
PRELIMINARY STATEMENTS
A. Levi Strauss & Co., a Delaware corporation ("LS&CO."), and Levi Strauss
Financial Center Corporation, a California corporation ("LSFCC" and together
with LS&Co., the "BORROWERS"), have entered into that certain Credit Agreement
dated as of September 29, 2003 among the Borrowers, the Lenders and the Agent
for the Lenders (as such agreement may be amended, restated, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"; the terms defined
therein and not otherwise defined herein being used herein as therein defined;
the rules of construction contained therein shall govern the interpretation of
this Subsidiary Guaranty MUTATIS MUTANDIS).
B. LS&Co., Levi Strauss International Group Finance Coordination Services
Comm V.A., a Belgian corporation, or any successor thereto ("LSIFCS") and
certain Material Domestic Subsidiaries of LS&Co. may from time to time enter, or
may from time to time have entered, into one or more Selected Revolving Lender
Hedge Agreements in accordance with the terms of the Credit Agreement, and it is
desired that the obligations of LS&Co., LSIFCS and such Material Domestic
Subsidiaries under the Selected Revolving Lender Hedge Agreements, including the
obligation of LS&Co., LSIFCS and such Material Domestic Subsidiaries to make
payments thereunder in the event of early termination or close out thereof,
together with all obligations of the Borrowers under the Credit Agreement and
the other Loan Documents, be guarantied hereunder.
C. LS&Co. and certain of its Subsidiaries may from time to time enter, or
may from time to time have entered, into one or more arrangements for Selected
Revolving Lender Cash Management Services in accordance with the terms of the
Credit Agreement, and it is desired that the obligations of LS&Co. and such
Subsidiaries arising in connection with such Selected Revolving Lender Cash
Management Services, together with all obligations of the Borrowers under the
Credit Agreement and the other Loan Documents, be guarantied hereunder.
D. The Guarantied Party, the Lenders and each Selected Revolving Lender
that has satisfied the requirements of SECTION 17(C) hereof are sometimes
referred to herein as the "BENEFICIARIES."
E. A portion of the proceeds of the Loans may be advanced to the
Guarantors, and thus the Guarantied Obligations (as hereinafter defined) are
being incurred for and will inure to the benefit of the Guarantors (which
benefits are hereby acknowledged).
F. It is a condition precedent to the initial extensions of credit by the
Lenders under the Credit Agreement that the Borrowers' obligations thereunder be
guarantied by the Guarantors.
G. The Guarantors are willing irrevocably and unconditionally to guaranty
such obligations of the Borrowers.
NOW, THEREFORE, based upon the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
in order to induce the Lenders and the Guarantied Party to enter into the Credit
Agreement and to induce the Selected Revolving Lenders to enter into the
Selected Revolving Lender Hedge Agreements and to provide the Selected Revolving
Lender Cash Management Services, the Guarantors hereby agree as follows:
1. GUARANTY. (a) In order to induce (i) the Lenders to extend credit to the
Borrowers pursuant to the Credit Agreement, (ii) the entry by the Selected
Revolving Lenders into the Selected Revolving Lender Hedge Agreements and (iii)
the provision by the Selected Revolving Lenders of the Selected Revolving Lender
Cash Management Services, the Guarantors jointly and severally irrevocably and
unconditionally guaranty, as primary obligors and not merely as sureties, the
due and punctual payment in full of all Guarantied Obligations (as hereinafter
defined) when the same shall become due, whether at stated maturity, by
acceleration, demand or otherwise (including amounts that would become due but
for the operation of the automatic stay under Section 362(a) of the Bankruptcy
Code, 11 U.S.C. ss. 362(a)). The term "GUARANTIED OBLIGATIONS" is used herein in
its most comprehensive sense and includes any and all Obligations of the
Borrowers, any and all obligations of LS&Co., LSIFCS and each Material Domestic
Subsidiary of LS&Co. under the Selected Revolving Lender Hedge Agreements to the
extent provided in SECTION 3.7 of the Credit Agreement and any and all
obligations of LS&Co. and each of its Subsidiaries in connection with the
Selected Revolving Lender Cash Management Services, now or hereafter made,
incurred or created, whether absolute or contingent, liquidated or unliquidated,
whether due or not due, and however arising under or in connection with the
Credit Agreement, the Selected Revolving Lender Hedge Agreements, the Selected
Revolving Lender Cash Management Services, this Subsidiary Guaranty and the
other Loan Documents, including those arising under successive borrowing
transactions under the Credit Agreement which shall either continue the
Obligations of the Borrowers or from time to time renew them after they have
been satisfied.
Each Guarantor acknowledges that a portion of the Loans may be advanced to
it, that Letters of Credit may be issued for the benefit of its business and
that the Guarantied Obligations are being incurred for and will inure to its
benefit.
Any interest on any portion of the Guarantied Obligations that accrues
after the commencement of any proceeding, voluntary or involuntary, involving
the bankruptcy, insolvency, receivership, reorganization, liquidation or
arrangement of LS&Co., LSFCC, LSIFCS or any of the other Subsidiaries of LS&Co.
(or, if interest on any portion of the Guarantied Obligations ceases to accrue
by operation of law by reason of the commencement of said proceeding, such
interest as would have accrued on such portion of the Guarantied Obligations if
said proceeding had not been commenced) shall be included in the Guarantied
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Obligations because it is the intention of each Guarantor and the Guarantied
Party that the Guarantied Obligations should be determined without regard to any
rule of law or order that may relieve LS&Co., LSFCC, LSIFCS or any of the other
Subsidiaries of LS&Co. of any portion of such Guarantied Obligations.
In the event that all or any portion of the Guarantied Obligations is paid,
the obligations of each Guarantor hereunder shall continue and remain in full
force and effect or be reinstated, as the case may be, in the event that all or
any part of such payment(s) is rescinded or recovered directly or indirectly
from the Guarantied Party or any other Beneficiary as a preference, fraudulent
transfer or otherwise, and any such payments that are so rescinded or recovered
shall constitute Guarantied Obligations.
Subject to the other provisions of this SECTION 1, upon the failure of
LS&Co., LSFCC, LSIFCS or any of the other Subsidiaries of LS&Co. to pay any of
the Guarantied Obligations when and as the same shall become due, each Guarantor
will upon demand pay, or cause to be paid, in cash, to the Guarantied Party for
the ratable benefit of the Beneficiaries, an amount equal to the aggregate of
the unpaid Guarantied Obligations.
(b) Anything contained in this Subsidiary Guaranty to the contrary
notwithstanding, the obligations of each Guarantor under this Subsidiary
Guaranty shall be limited to a maximum aggregate amount equal to the largest
amount that would not render its obligations hereunder subject to avoidance as a
fraudulent transfer or conveyance under Section 548 of Title 11 of the United
States Code or any applicable provisions of comparable state law (collectively,
the "FRAUDULENT TRANSFER LAWS"), in each case after giving effect to all other
liabilities of such Guarantor, contingent or otherwise, that are relevant under
the Fraudulent Transfer Laws (specifically excluding, however, any liabilities
of such Guarantor (i) in respect of intercompany indebtedness to any Borrower or
other affiliates of any Borrower to the extent that such indebtedness would be
discharged in an amount equal to the amount paid by such Guarantor hereunder and
(ii) under any guaranty which contains a limitation as to maximum amount similar
to that set forth in this SECTION 1(B), pursuant to which the liability of such
Guarantor hereunder is included in the liabilities taken into account in
determining such maximum amount) and after giving effect as assets to the value
(as determined under the applicable provisions of the Fraudulent Transfer Laws)
of any rights to subrogation, reimbursement, indemnification or contribution of
such Guarantor pursuant to applicable law or pursuant to the terms of any
agreement.
(c) Each Guarantor under this Subsidiary Guaranty and each guarantor under
other guaranties, if any, relating to the Credit Agreement (the "RELATED
GUARANTIES") that contain a contribution provision similar to that set forth in
this SECTION 1(C), together desire to allocate among themselves (collectively,
the "CONTRIBUTING GUARANTORS"), in a fair and equitable manner, their
obligations arising under this Subsidiary Guaranty and the Related Guaranties.
Accordingly, in the event any payment or distribution is made on any date by a
Guarantor under this Subsidiary Guaranty or a guarantor under a Related
Guaranty, each such Guarantor or such other guarantor shall be entitled to a
contribution from each of the other Contributing Guarantors in the maximum
amount permitted by law so as to maximize the aggregate amount of the Guarantied
Obligations paid to the Beneficiaries.
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2. GUARANTY ABSOLUTE; CONTINUING GUARANTY. The obligations of each
Guarantor hereunder are irrevocable, absolute, independent and unconditional and
shall not be affected by any circumstance which constitutes a legal or equitable
discharge of a guarantor or surety other than payment in full of the Guarantied
Obligations. In furtherance of the foregoing and without limiting the generality
thereof, each Guarantor agrees that: (a) this Subsidiary Guaranty is a guaranty
of payment when due and not of collectibility; (b) the Guarantied Party may
enforce this Subsidiary Guaranty upon the occurrence of an Event of Default
under the Credit Agreement notwithstanding the existence of any dispute between
LS&Co., LSFCC, LSIFCS, any of the other Subsidiaries of LS&Co., or any Guarantor
and any Beneficiary with respect to the existence of such event; (c) the
obligations of each Guarantor hereunder are independent of each of the
obligations of the Borrowers under the Loan Documents, of LS&Co., LSFCC, LSIFCS
or any Material Domestic Subsidiary of LS&Co. under the Selected Revolving
Lender Hedge Agreements, of LS&Co. or any of its Subsidiaries in connection with
any Selected Revolving Lender Cash Management Services and a separate action or
actions may be brought and prosecuted against each Guarantor whether or not any
action is brought against LS&Co., LSFCC, LSIFCS, any of the other Subsidiaries
of LS&Co. or any of such other Guarantors and whether or not LS&Co., LSFCC,
LSIFCS, any of the other Subsidiaries of LS&Co. or any other Guarantor is joined
in any such action or actions; and (d) a payment of a portion, but not all, of
the Guarantied Obligations by one or more Guarantors shall in no way limit,
affect, modify or abridge the liability of such or any other Guarantor for any
portion of the Guarantied Obligations that has not been paid. This Subsidiary
Guaranty is a continuing guaranty and shall be binding upon each Guarantor and
its successors and assigns, and each Guarantor irrevocably waives any right to
revoke this Subsidiary Guaranty as to future transactions giving rise to any
Guarantied Obligations.
3. ACTIONS BY THE BENEFICIARIES. Any Beneficiary may from time to time,
without notice or demand and without affecting the validity or enforceability of
this Subsidiary Guaranty or giving rise to any limitation, impairment or
discharge of any Guarantor's liability hereunder, (a) renew, extend, accelerate
or otherwise change the time, place, manner or terms of payment of the
Guarantied Obligations, (b) settle, compromise, release or discharge, or accept
or refuse any offer of performance with respect to, or substitutions for, the
Guarantied Obligations or any agreement relating thereto and/or subordinate the
payment of the same to the payment of any other obligations, (c) request and
accept other guaranties of the Guarantied Obligations and take and hold security
for the payment of this Subsidiary Guaranty or the Guarantied Obligations, (d)
release, exchange, compromise, subordinate or modify, with or without
consideration, any security for payment of the Guarantied Obligations, any other
guaranties of the Guarantied Obligations, or any other obligation of any Person
with respect to the Guarantied Obligations, (e) enforce and apply any security
now or hereafter held by or for the benefit of any Beneficiary in respect of
this Subsidiary Guaranty or the Guarantied Obligations and direct the order or
manner of sale thereof, or exercise any other right or remedy that Guarantied
Party or the other Beneficiaries, or any of them, may have against any such
security, as Guarantied Party in its discretion may determine consistent with
the Credit Agreement, the Selected Revolving Lender Hedge Agreements or the
Selected Revolving Lender Cash Management Services and any applicable security
agreement, including foreclosure on any such security pursuant to one or more
judicial or nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable and (f) exercise any other rights available to the
Guarantied Party or the other Beneficiaries, or any of them, under the Loan
Documents, the
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Selected Revolving Lender Hedge Agreements or the Selected Revolving Lender Cash
Management Services.
4. NO DISCHARGE. This Subsidiary Guaranty and the obligations of the
Guarantors hereunder shall be valid and enforceable and shall not be subject to
any limitation, impairment or discharge for any reason (other than payment in
full of the Guarantied Obligations), including the occurrence of any of the
following, whether or not any Guarantor shall have had notice or knowledge of
any of them: (a) any failure to assert or enforce or agreement not to assert or
enforce, or the stay or enjoining, by order of court, by operation of law or
otherwise, of the exercise or enforcement of, any claim or demand or any right,
power or remedy with respect to the Guarantied Obligations or any agreement
relating thereto, or with respect to any other guaranty of or security for the
payment of the Guarantied Obligations, (b) any waiver or modification of, or any
consent to departure from, any of the terms or provisions of the Credit
Agreement, any of the other Loan Documents, the Selected Revolving Lender Hedge
Agreements, any Selected Revolving Lender Cash Management Services or any
agreement or instrument executed pursuant thereto, or of any other guaranty or
security for the Guarantied Obligations, (c) the Guarantied Obligations, or any
agreement relating thereto, at any time being found to be illegal, invalid or
unenforceable in any respect, (d) the application of payments received from any
source to the payment of indebtedness other than the Guarantied Obligations,
even though the Guarantied Party or the other Beneficiaries, or any of them,
might have elected to apply such payment to any part or all of the Guarantied
Obligations, (e) any failure to perfect or continue perfection of a security
interest in any collateral which secures any of the Guarantied Obligations, (f)
any defenses, set-offs or counterclaims which LS&Co., LSFCC, LSIFCS, any other
Guarantor or any other Subsidiary of LS&Co. may assert against the Guarantied
Party or any Beneficiary in respect of the Guarantied Obligations, including but
not limited to failure of consideration, breach of warranty, payment, statute of
frauds, statute of limitations, accord and satisfaction and usury and (g) any
other act or thing or omission, or delay to do any other act or thing, which may
or might in any manner or to any extent vary the risk of a Guarantor as an
obligor in respect of the Guarantied Obligations.
5. WAIVERS. Each Guarantor waives, for the benefit of the Beneficiaries:
(a) any right to require the Guarantied Party or the other Beneficiaries, as a
condition of payment or performance by such Guarantor, to (i) proceed against
LS&Co., LSFCC or LSIFCS, any other guarantor (including any other Guarantor) of
the Guarantied Obligations, any other Subsidiary of LS&Co. or any other Person,
(ii) proceed against or exhaust any security held from LS&Co., LSFCC or LSIFCS,
any other guarantor of the Guarantied Obligations, any other Subsidiary of
LS&Co. or any other Person, (iii) proceed against or have resort to any balance
of any deposit account or credit on the books of any Beneficiary in favor of
LS&Co., LSFCC, LSIFCS, any other Guarantor, any other Subsidiary of LS&Co. or
any other Person, or (iv) pursue any other remedy in the power of any
Beneficiary; (b) any defense arising by reason of the incapacity, lack of
authority or any disability or other defense of LS&Co., LSFCC, LSIFCS, any other
Guarantor or any other Subsidiary of LS&Co. including any defense based on or
arising out of the lack of validity or the unenforceability of the Guarantied
Obligations or any agreement or instrument relating thereto or by reason of the
cessation of the liability of LS&Co., LSFCC, LSIFCS, any other Guarantor or any
other Subsidiary of LS&Co. from any cause other than payment in full of the
Guarantied Obligations; (c) any defense based upon any statute or rule of law
which provides that the obligation of a surety must be neither larger in amount
nor in other respects more burdensome than that of the principal; (d) any
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defense based upon the Guarantied Party's or any other Beneficiary's errors or
omissions in the administration of the Guarantied Obligations, except behavior
that amounts to gross negligence or willful misconduct; (e) (i) any principles
or provisions of law, statutory or otherwise, that are or might be in conflict
with the terms of this Subsidiary Guaranty and any legal or equitable discharge
of such Guarantor's obligations hereunder, (ii) the benefit of any statute of
limitations affecting such Guarantor's liability hereunder or the enforcement
hereof, (iii) any rights to set-offs, recoupments and counterclaims and (iv)
promptness, diligence and any requirement that any Beneficiary protect, secure,
perfect or insure any Lien or any property subject thereto; (f) notices,
demands, presentments, protests, notices of protest, notices of dishonor and
notices of any action or inaction, including acceptance of this Subsidiary
Guaranty, notices of default under the Credit Agreement, notices of default,
close out or early termination under any Selected Revolving Lender Hedge
Agreements or any agreement or instrument related thereto, notices in connection
with any event relating to any Selected Revolving Lender Cash Management
Services, notices of any renewal, extension or modification of the Guarantied
Obligations or any agreement related thereto, notices of any extension of credit
to LS&Co., LSFCC, LSIFCS, any other Guarantor or any other Subsidiary of LS&Co.
and notices of any of the matters referred to in SECTIONS 3 and 4 hereof and any
right to consent to any thereof; and (g) to the fullest extent permitted by law,
any defenses or benefits that may be derived from or afforded by law which limit
the liability of or exonerate guarantors or sureties, or which may conflict with
the terms of this Subsidiary Guaranty.
As used in this paragraph, any reference to "the principal" includes
LS&Co., LSFCC, LSIFCS, any other Material Domestic Subsidiary party to any
Selected Revolving Lender Hedge Agreements and any other Subsidiary of LS&Co.
party to any arrangement relating to Selected Revolving Lender Cash Management
Services and any reference to "the creditor" includes the Guarantied Party and
each other Beneficiary. In accordance with Section 2856 of the California Civil
Code each Guarantor waives any and all rights and defenses available to it by
reason of Sections 2787 to 2855, inclusive, 2899 and 3433 of the California
Civil Code, including any and all rights or defenses such Guarantor may have
because the Guarantied Obligations are secured by real property or by reason of
protection afforded to the principal with respect to any of the Guarantied
Obligations, or to any other guarantor of any of the Guarantied Obligations with
respect to any of such guarantor's obligations under its guaranty, in either
case pursuant to the antideficiency or other laws of the State of California
limiting or discharging the principal's indebtedness or such guarantor's
obligations, including Section 580a, 580b, 580d or 726 of the California Code of
Civil Procedure. Consequently, among other things: (1) the creditor may collect
from such Guarantor without first foreclosing on any real or personal property
collateral pledged by the principal; and (2) if the creditor forecloses on any
real property collateral pledged by the principal: (A) the amount of the
Guarantied Obligations may be reduced only by the price for which the collateral
is sold at the foreclosure sale, even if the collateral is worth more than the
sale price and (B) the creditor may collect from such Guarantor even if the
creditor, by foreclosing on the real property collateral, has destroyed any
right such Guarantor may have to collect from the principal. This is an
unconditional and irrevocable waiver of any right and defenses such Guarantor
may have because the Guarantied Obligations are secured by real property. Each
Guarantor also waives all rights and defenses arising out of an election of
remedies by the creditor, even though that election of remedies, such as a
nonjudicial foreclosure with respect to security for a Guarantied Obligation,
has destroyed such Guarantor's rights of subrogation and reimbursement against
the principal by the operation of Section 580d of the Code of Civil Procedure or
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otherwise; and even though that election of remedies by the creditor, such as
nonjudicial foreclosure with respect to security for an obligation of any other
guarantor of any of the Guarantied Obligations, has destroyed such Guarantor's
rights of contribution against such other guarantor. No other provision of this
Subsidiary Guaranty shall be construed as limiting the generality of any of the
covenants and waivers set forth in this paragraph.
6. GUARANTORS' RIGHTS OF SUBROGATION, CONTRIBUTION, ETC.; SUBORDINATION OF
OTHER OBLIGATIONS. Each Guarantor waives any claim, right or remedy, direct or
indirect, that such Guarantor now has or may hereafter have against LS&Co.,
LSFCC, LSIFCS, any other Guarantor, any other Subsidiary of LS&Co. or their
respective assets in connection with this Subsidiary Guaranty or the performance
by such Guarantor of its obligations hereunder, in each case whether such claim,
right or remedy arises in equity, under contract, by statute (including under
California Civil Code Section 2847, 2848 or 2849), under common law or otherwise
and including (a) any right of subrogation, reimbursement or indemnification
that such Guarantor now has or may hereafter have against LS&Co., LSFCC, LSIFCS,
any other Guarantor or any other Subsidiary of LS&Co., (b) any right to enforce,
or to participate in, any claim, right or remedy that any Beneficiary now has or
may hereafter have against LS&Co., LSFCC, LSIFCS, any other Guarantor or any
other Subsidiary of LS&Co. and (c) any benefit of, and any right to participate
in, any collateral or security now or hereafter held by any Beneficiary. In
addition, until the Guarantied Obligations shall have been paid in full, the
Commitments shall have terminated and all Letters of Credit shall have expired
or been cancelled, each Guarantor shall withhold exercise of any right of
contribution such Guarantor may have against any other guarantor of any of the
Guarantied Obligations. Each Guarantor further agrees that, to the extent the
waiver or agreement to withhold the exercise of its rights of subrogation,
reimbursement, indemnification and contribution as set forth herein is found by
a court of competent jurisdiction to be void or voidable for any reason, any
rights of subrogation, reimbursement or indemnification such Guarantor may have
against LS&Co., LSFCC, LSIFCS, any other Guarantor or any other Subsidiary of
LS&Co. or against any collateral or security, and any rights of contribution
such Guarantor may have against any such other guarantor, shall be junior and
subordinate to any rights the Guarantied Party or the other Beneficiaries may
have against LS&Co., LSFCC, LSIFCS, any other Guarantor or any other Subsidiary
of LS&Co., to all right, title and interest the Guarantied Party or the other
Beneficiaries may have in any such collateral or security, and to any right the
Guarantied Party or the other Beneficiaries may have against such other
guarantor.
Any indebtedness of LS&Co., LSFCC, LSIFCS, any other Guarantor or any other
Subsidiary of LS&Co. now or hereafter held by any Guarantor is subordinated in
right of payment to the Guarantied Obligations, and any such indebtedness of
LS&Co., LSFCC, LSIFCS, any other Guarantor or any other Subsidiary of LS&Co. to
a Guarantor collected or received by such Guarantor after an Event of Default
has occurred and is continuing, and any amount paid to a Guarantor on account of
any subrogation, reimbursement, indemnification or contribution rights referred
to in the preceding paragraph when all Guarantied Obligations have not been paid
in full, shall be held in trust for the Guarantied Party on behalf of the
Beneficiaries and shall forthwith be paid over to the Guarantied Party for the
benefit of the Beneficiaries to be credited and applied against the Guarantied
Obligations.
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7. EXPENSES. The Guarantors jointly and severally agree to pay or reimburse
the Guarantied Party and each Beneficiary for all costs and expenses incurred in
connection with the enforcement, attempted enforcement or preservation of any
rights or remedies under this Subsidiary Guaranty, including all Attorney Costs.
8. FINANCIAL CONDITION OF LS&CO., LSFCC, LSIFCS, ANY OTHER GUARANTOR OR ANY
OTHER SUBSIDIARY OF LS&CO. No Beneficiary shall have any obligation, and each
Guarantor waives any duty on the part of any Beneficiary, to disclose or discuss
with such Guarantor its assessment, or such Guarantor's assessment, of the
financial condition of LS&Co., LSFCC, LSIFCS, any other Guarantor or any other
Subsidiary of LS&Co. or any matter or fact relating to the business, operations
or condition of LS&Co., LSFCC, LSIFCS, any other Guarantor or any other
Subsidiary of LS&Co. Each Guarantor has adequate means to obtain information
from LS&Co., LSFCC, LSIFCS, any other Guarantor or any other Subsidiary of
LS&Co. on a continuing basis concerning the financial condition of LS&Co.,
LSFCC, LSIFCS, any other Guarantor or any other Subsidiary of LS&Co. and its
ability to perform its obligations under the Loan Documents and the Selected
Revolving Lender Hedge Agreements, and in connection with any Selected Revolving
Lender Cash Management Services, as the case may be, and each Guarantor assumes
the responsibility for being and keeping informed of the financial condition of
LS&Co., LSFCC, LSIFCS, any other Guarantor or any other Subsidiary of LS&Co. and
of all circumstances bearing upon the risk of nonpayment of the Guarantied
Obligations.
9. REPRESENTATIONS AND WARRANTIES. Each Guarantor makes, for the benefit of
the Beneficiaries, each of the representations and warranties made in the Credit
Agreement by the Borrowers as to such Guarantor, its assets, financial
condition, operations, organization, legal status, business and the Loan
Documents to which it is a party.
10. COVENANTS. Each Guarantor agrees that, so long as any part of the
Guarantied Obligations shall remain unpaid, any Letter of Credit shall be
outstanding and any Lender shall have any Commitment, such Guarantor will,
unless Majority Lenders shall otherwise consent in writing, perform or observe,
and cause its Subsidiaries to perform or observe, all of the terms, covenants
and agreements that the Loan Documents, any Selected Revolving Lender Hedge
Agreement or any document entered into in connection with Selected Revolving
Lender Cash Management Services state that the Borrowers are to cause a
Guarantor and such Subsidiaries to perform or observe.
11. SET OFF. In addition to any other rights any Beneficiary may have under
law or in equity, if any amount shall at any time be due and owing by a
Guarantor to any Beneficiary under this Subsidiary Guaranty, such Beneficiary is
authorized at any time or from time to time, without notice (any such notice
being expressly waived), to set off and to appropriate and to apply any and all
deposits (general or special, including but not limited to indebtedness
evidenced by certificates of deposit, whether matured or unmatured) and any
other indebtedness of such Beneficiary owing to a Guarantor and any other
property of such Guarantor held by a Beneficiary to or for the credit or the
account of such Guarantor against and on account of the Guarantied Obligations
and liabilities of such Guarantor to any Beneficiary under this Subsidiary
Guaranty.
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12. DISCHARGE OF GUARANTY.
(a) If all of the stock of a Guarantor or any of its successors in interest
under this Subsidiary Guaranty shall be sold or otherwise disposed of (including
by merger or consolidation) in any sale or other disposition to a Person (other
than a Subsidiary or an Affiliate of LS&Co.) not prohibited by the Credit
Agreement or otherwise consented to by Majority Lenders, the obligations of such
Guarantor or such successor in interest, as the case may be, hereunder shall
automatically be discharged and released without any further action by any
Beneficiary or any other Person effective as of the time of such sale; provided
that, if the sale of such stock constitutes a disposition of assets as a
condition precedent to such discharge and release, the Guarantied Party shall
have received evidence satisfactory to it that arrangements satisfactory to it
have been made for delivery in cash to the Guarantied Party of the Net Proceeds
(if any) as required by the Credit Agreement.
(b) In the event that the obligations of any Guarantor hereunder are
released and discharged by the Agent under the Credit Agreement for any reason,
such release and discharge shall be effective to release and discharge the
obligations of such Guarantor hereunder with respect to all Obligations
(including all obligations of LS&Co., LSIFCS and each Material Domestic
Subsidiary of LS&Co. under the Selected Revolving Lender Hedge Agreements and
any and all obligations of LS&Co. and each of its Subsidiaries incurred in
connection with the Selected Revolving Lender Cash Management Services).
13. AMENDMENTS; WAIVERS; CUMULATIVE REMEDIES.
(a) No amendment, modification, termination or waiver of any provision of
this Subsidiary Guaranty, and no consent to any departure by any Guarantor
therefrom, shall in any event be effective without the written concurrence of
the Guarantied Party and, in the case of any such amendment or modification, the
Guarantors. Any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given.
(b) No failure by the Guarantied Party or any other Beneficiary to exercise
any right, remedy, or option under this Subsidiary Guaranty or any present or
future supplement thereto, or in any other agreement between or among the
Guarantors and the Guarantied Party and/or any other Beneficiary, or delay by
the Guarantied Party or any other Beneficiary in exercising the same, will
operate as a waiver thereof. No waiver by Guarantied party or any other
Beneficiary on any occasion shall affect or diminish the Guarantied Party's and
each other Beneficiary's rights thereafter to require strict performance by one
or more of the Guarantors of any provision of this Subsidiary Guaranty.
(c) The Guarantied Party's and each other Beneficiary's rights under this
Subsidiary Guaranty will be cumulative and not exclusive of any other right or
remedy which the Guarantied Party or any other Beneficiary may have.
9
14. MISCELLANEOUS.
It is not necessary for the Beneficiaries to inquire into the capacity or
powers of any Guarantor, LS&Co., LSFCC, LSIFCS or any other Subsidiary of
LS&Co., or the officers, directors or any agents acting or purporting to act on
behalf of any of them.
The illegality or unenforceability of any provision of this Subsidiary
Guaranty or any Loan Document or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Subsidiary Guaranty or any instrument or agreement
required hereunder.
The provisions of this Subsidiary Guaranty shall be binding upon and inure
to the benefit of the respective representatives, successors, and assigns of the
parties hereto; PROVIDED, HOWEVER, that no interest herein may be assigned by
any Guarantor without prior written consent of each Beneficiary. The rights and
benefits of the Beneficiaries hereunder shall, if such Beneficiaries agree,
inure to any party acquiring any interest in the Obligations or any part
thereof.
The captions contained in this Subsidiary Guaranty are for convenience of
reference only, are without substantive meaning and should not be construed to
modify, enlarge, or restrict any provision.
All rights, remedies and powers provided in this Subsidiary Guaranty may be
exercised only to the extent that the exercise thereof does not violate any
applicable provision of law, and all the provisions of this Subsidiary Guaranty
are intended to be subject to all applicable mandatory provisions of law that
may be controlling and to be limited to the extent necessary so that they shall
not render this Subsidiary Guaranty invalid, unenforceable, in whole or in part,
or not entitled to be recorded, registered or filed under the provisions of any
applicable law.
The parties hereto have participated jointly in the negotiation and
drafting of this Subsidiary Guaranty. In the event an ambiguity or question of
intent or interpretation arises, this Subsidiary Guaranty shall be construed as
if drafted jointly by the parties hereto and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of any
provisions of this Subsidiary Guaranty.
Each of the parties represents to each other party hereto that it has
discussed this Subsidiary Guaranty and, specifically, the provisions of SECTIONS
18 and 19, with its counsel.
NO CLAIM MAY BE MADE BY THE GUARANTORS, ANY LENDER OR ANY SELECTED
REVOLVING LENDER FOR WHICH THE GUARANTIED PARTY HAS RECEIVED THE NOTICE REQUIRED
BY SECTION 17(C) HEREOF OR OTHER PERSON AGAINST THE GUARANTIED PARTY OR ANY
OTHER BENEFICIARY, OR THE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, COUNSEL,
REPRESENTATIVES, AGENTS OR ATTORNEYS-IN-FACT OF ANY OF THEM FOR ANY SPECIAL,
INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM FOR BREACH
OF CONTRACT OR ANY OTHER THEORY OF LIABILITY ARISING OUT OF OR RELATED TO THE
TRANSACTIONS CONTEMPLATED BY THIS SUBSIDIARY GUARANTY OR ANY OTHER LOAN
DOCUMENT, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH, AND
10
THE GUARANTORS, EACH LENDER AND EACH SELECTED REVOLVING LENDER FOR WHICH THE
GUARANTIED PARTY HAS RECEIVED THE NOTICE REQUIRED BY SECTION 17(C) HEREBY WAIVE,
RELEASE AND AGREE NOT TO SUE UPON ANY CLAIM FOR SUCH DAMAGES, WHETHER OR NOT
ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
15. ADDITIONAL GUARANTORS. The initial Guarantor(s) hereunder shall be such
of the Domestic Subsidiaries of LS&Co. as are signatories hereto on the date
hereof. From time to time subsequent to the date hereof, Subsidiaries of LS&Co.
may become parties hereto, as additional Guarantors (each an "ADDITIONAL
GUARANTOR"), by executing a counterpart, a form of which is attached hereto as
EXHIBIT A, of this Subsidiary Guaranty. Upon delivery of any such counterpart to
the Guarantied Party, notice of which is hereby waived by the Guarantors, each
such Additional Guarantor shall be a Guarantor and shall be as fully a party
hereto as if such Additional Guarantor were an original signatory hereof. Each
Guarantor expressly agrees that its obligations arising hereunder shall not be
affected or diminished by the addition or release of any other Guarantor
hereunder, nor by any election of the Guarantied Party not to cause any
Subsidiary of LS&Co. to become an Additional Guarantor hereunder. This
Subsidiary Guaranty shall be fully effective as to any Guarantor that is or
becomes a party hereto regardless of whether any other Person becomes or fails
to become or ceases to be a Guarantor hereunder.
16. COUNTERPARTS; EFFECTIVENESS. This Subsidiary Guaranty may be executed
in any number of counterparts, and by the Guarantied Party and each Guarantor in
separate counterparts, each of which shall be an original, but all of which
shall together constitute one and the same agreement; signature pages may be
detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Subsidiary Guaranty shall become effective as to each Guarantor
upon the execution of a counterpart hereof by such Guarantor (whether or not a
counterpart hereof shall have been executed by any other Guarantor). Any
counterpart of this Subsidiary Guaranty may be transmitted and/or signed by
facsimile. The effectiveness of such counterpart and signatures shall, subject
to any applicable law, have the same force and effect as manually-signed
originals and shall be binding on all Guarantors. The Guarantied Party may also
require that any such counterpart and signatures be confirmed by a
manually-signed original thereof; PROVIDED, HOWEVER, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile
counterpart or signature.
17. THE GUARANTIED PARTY AS AGENT.
(a) The Guarantied Party has been appointed to act as Guarantied Party
hereunder by the Lenders. The Guarantied Party shall be obligated, and shall
have the right hereunder, to make demands, to give notices, to exercise or
refrain from exercising any rights and to take or refrain from taking any
action, solely in accordance with this Subsidiary Guaranty and the Credit
Agreement.
(b) The Guarantied Party shall at all times be the same Person that is the
Agent under the Credit Agreement. Written notice of resignation by the Agent
pursuant to Section 12.9 of the Credit Agreement shall also constitute notice of
resignation as Guarantied Party under this Subsidiary Guaranty; and appointment
11
of a successor agent pursuant to Section 12.9 of the Credit Agreement shall also
constitute appointment of a successor Guarantied Party under this Subsidiary
Guaranty. Upon the acceptance of any appointment as agent under Section 12.9 of
the Credit Agreement by a successor agent, that successor agent shall thereupon
succeed to become vested with all the rights, powers, privileges and duties of
the retiring Guarantied Party under this Subsidiary Guaranty, and the retiring
Guarantied Party under this Subsidiary Guaranty shall promptly (i) transfer to
such successor Guarantied Party all sums held hereunder, together with all
records and other documents necessary or appropriate in connection with the
performance of the duties of the successor Guarantied Party under this
Subsidiary Guaranty and (ii) take such other actions as may be necessary or
appropriate in connection with the assignment to such successor Guarantied Party
of the rights created hereunder, whereupon such retiring Guarantied Party shall
be discharged from its duties and obligations under this Subsidiary Guaranty.
After any retiring Guarantied Party's resignation hereunder as Guarantied Party,
the provisions of this Subsidiary Guaranty shall inure to its benefits as to any
actions taken or omitted to be taken by it under this Subsidiary Guaranty while
it was the Guarantied Party hereunder.
(c) The Guarantied Party shall not be deemed to have any duty whatsoever
with respect to any Selected Revolving Lender until it shall have received
written notice in form and substance satisfactory to the Guarantied Party from a
Borrower, a Guarantor or the Selected Revolving Lender as to the existence and
terms of the applicable Selected Revolving Lender Hedge Agreement or Selected
Revolving Lender Cash Management Services and unless such Selected Revolving
Lender has satisfied the requirements of the proviso in SECTION 3.7 of the
Credit Agreement. Each such Selected Revolving Lender, by its acceptance of the
benefits hereof, hereby appoints the Guarantied Party as Agent for such Selected
Revolving Lender for purposes of this Subsidiary Guaranty.
18. GOVERNING LAW; CHOICE OF FORUM; SERVICE OF PROCESS.
(a) THIS SUBSIDIARY GUARANTY SHALL BE INTERPRETED AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE INTERNAL
LAWS (AS OPPOSED TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF CALIFORNIA;
PROVIDED THAT THE GUARANTIED PARTY AND THE OTHER BENEFICIARIES SHALL RETAIN ALL
RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS SUBSIDIARY GUARANTY
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF
CALIFORNIA OR OF THE UNITED STATES OF AMERICA LOCATED IN LOS ANGELES COUNTY,
CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS SUBSIDIARY GUARANTY, EACH OF
THE GUARANTORS, THE GUARANTIED PARTY AND THE OTHER BENEFICIARIES CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. EACH OF THE GUARANTORS, THE GUARANTIED PARTY AND THE OTHER
BENEFICIARIES IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
12
JURISDICTION IN RESPECT OF THIS SUBSIDIARY GUARANTY OR ANY DOCUMENT RELATED
HERETO. NOTWITHSTANDING THE FOREGOING: (1) THE GUARANTIED PARTY AND THE OTHER
BENEFICIARIES SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST
EACH GUARANTOR OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION THE
GUARANTIED PARTY OR THE OTHER BENEFICIARIES DEEM NECESSARY OR APPROPRIATE IN
ORDER TO ENFORCE THIS GUARANTY AND (2) EACH OF THE GUARANTORS, THE GUARANTIED
PARTY AND THE OTHER BENEFICIARIES ACKNOWLEDGES THAT ANY APPEALS FROM THE COURTS
DESCRIBED IN THE IMMEDIATELY PRECEDING SENTENCE MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE THOSE JURISDICTIONS.
(c) EACH GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS
UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED
MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO EACH GUARANTOR AT ITS ADDRESS SET
FORTH ON THE SIGNATURE PAGES HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO BE
COMPLETED FIVE (5) DAYS AFTER THE SAME SHALL HAVE BEEN SO DEPOSITED IN THE U.S.
MAILS POSTAGE PREPAID. NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF THE
GUARANTIED PARTY OR THE OTHER BENEFECIARIES TO SERVE LEGAL PROCESS BY ANY OTHER
MANNER PERMITTED BY LAW.
(d) NOTWITHSTANDING ANY OTHER PROVISION OF THIS SUBSIDIARY GUARANTY TO THE
CONTRARY, ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES, ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT INCLUDING ANY CLAIM
BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL AT THE REQUEST OF ANY PARTY
HERETO BE DETERMINED BY BINDING ARBITRATION. The arbitration shall be conducted
in accordance with the United States Arbitration Act (Title 9, U.S. Code),
notwithstanding any choice of law provision in this Agreement, and under the
Commercial Rules of the American Arbitration Association ("AAA"). The
arbitrator(s) shall give effect to statutes of limitation in determining any
claim. Any controversy concerning whether an issue is arbitrable shall be
determined by the arbitrator(s). Judgment upon the arbitration award may be
entered in any court having jurisdiction. The institution and maintenance of an
action for judicial relief or pursuant to a provisional or ancillary remedy
shall not constitute a waiver of the right of either party, including the
plaintiff, to submit the controversy or claim to arbitration if any other party
contests such action for judicial relief.
(e) Notwithstanding the provisions of (d) above, no controversy or claim
shall be submitted to arbitration without the consent of all parties if, at the
time of the proposed submission, such controversy or claim arises from or
related to an obligation to any Beneficiary which is secured by real estate
property collateral (exclusive of real estate space lease assignments). If all
the parties do not consent to submission of such a controversy or claim to
arbitration, the controversy or claim shall be determined as provided in SECTION
18(F).
(f) At the request of any party a controversy or claim which is not
submitted to arbitration as provided and limited in SECTIONS 18(D) and (E) shall
be determined by judicial reference. If such an election is made, the parties
13
shall designate to the court a referee or referees selected under the auspices
of the AAA in the same manner as arbitrators are selected in AAA-sponsored
proceedings. The presiding referee of the panel, or the referee if there is a
single referee, shall be an active attorney or retired judge. Judgment upon the
award rendered by such referee or referees shall be entered in the court in
which such proceeding was commenced.
(g) No provision of SECTIONS 18(D) through (G) shall limit the right of the
Guarantied Party or the other Beneficiaries to exercise self-help remedies such
as setoff, foreclosure against or sale of any real or personal property
collateral or security, or obtaining provisional or ancillary remedies from a
court of competent jurisdiction before, after, or during the pendency of any
arbitration or other proceeding. The exercise of a remedy does not waive the
right of either party to resort to arbitration or reference. At the Guarantied
Party's option, foreclosure under a deed of trust or mortgage may be
accomplished either by exercise of power of sale under the deed of trust or
mortgage or by judicial foreclosure.
19. WAIVER OF JURY TRIAL. SUBJECT TO THE PROVISIONS OF SECTION 18, THE
GUARANTORS, THE GUARANTIED PARTY AND THE OTHER BENEFICIARIES EACH IRREVOCABLY
WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS SUBSIDIARY GUARANTY, THE OTHER
LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES
AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE,
WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE
GUARANTORS, THE GUARANTIED PARTY AND THE OTHER BENEFICIARIES EACH AGREE THAT ANY
SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY.
WITHOUT LIMITING THE FOREGOING, THE GUARANTORS, THE GUARANTIED PARTY AND THE
OTHER BENEFICIARIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY
IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER
PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS SUBSIDIARY GUARANTY OR THE OTHER LOAN DOCUMENTS OR ANY
PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS SUBSIDIARY GUARANTY
AND THE OTHER LOAN DOCUMENTS.
[The remainder of this page has been intentionally left blank.]
14
IN WITNESS WHEREOF, each Guarantor has caused this Subsidiary
Guaranty to be duly executed and delivered by its officer thereunto duly
authorized as of the date first written above.
BATTERY STREET ENTERPRISES, INC.
By:
______________________________________
Name: Joseph M. Maurer
Title: Treasurer
Address: Levi's Plaza
1155 Battery Street
San Francisco, CA 94111
HARTWELL COMMODITIES GROUP
By:
______________________________________
Name: Joseph M. Maurer
Title: Treasurer
Address: Levi's Plaza
1155 Battery Street
San Francisco, CA 94111
LEVI STRAUSS GLOBAL FULFILLMENT
SERVICES, INC.
By:
______________________________________
Name: Joseph M. Maurer
Title: Treasurer
Address: Levi's Plaza
1155 Battery Street
San Francisco, CA 94111
S-1
LEVI STRAUSS GLOBAL
OPERATIONS, INC.
By:
______________________________________
Name: Joseph M. Maurer
Title: Treasurer
Address: Levi's Plaza
1155 Battery Street
San Francisco, CA 94111
LEVI STRAUSS INTERNATIONAL
By:
______________________________________
Name: Joseph M. Maurer
Title: Treasurer
Address: Levi's Plaza
1155 Battery Street
San Francisco, CA 94111
S-2
LEVI STRAUSS INTERNATIONAL, INC.
By:
______________________________________
Name: Joseph M. Maurer
Title: Treasurer
Address: Levi's Plaza
1155 Battery Street
San Francisco, CA 94111
LEVI STRAUSS RECEIVABLES FUNDING, LLC
By:
______________________________________
Name: Joseph M. Maurer
Title: Treasurer
Address: Levi's Plaza
1155 Battery Street
San Francisco, CA 94111
LEVI STRAUSS SECURITIZATION CORP.
By:
______________________________________
Name: Joseph M. Maurer
Title: Treasurer
Address: Levi's Plaza
1155 Battery Street
San Francisco, CA 94111
S-3
LEVI STRAUSS SERVICES INC.
By:
______________________________________
Name: Joseph M. Maurer
Title: Treasurer
Address: Levi's Plaza
1155 Battery Street
San Francisco, CA 94111
LEVI STRAUSS, U.S.A., LLC
By:
______________________________________
Name: Joseph M. Maurer
Title: Treasurer
Address: Levi's Plaza
1155 Battery Street
San Francisco, CA 94111
LEVI STRAUSS- ARGENTINA, LLC
By:
______________________________________
Name: Joseph M. Maurer
Title: Treasurer
Address: Levi's Plaza
1155 Battery Street
San Francisco, CA 94111
S-4
LEVI'S ONLY STORES, INC.
By:
______________________________________
Name: Joseph M. Maurer
Title: Treasurer
Address: Levi's Plaza
1155 Battery Street
San Francisco, CA 94111
NF INDUSTRIES, INC.
By:
______________________________________
Name: Joseph M. Maurer
Title: Treasurer
Address: Levi's Plaza
1155 Battery Street
San Francisco, CA 94111
S-5
ACKNOWLEDGED AND FOR PURPOSES OF
THE WAIVER OF JURY TRIAL SET FORTH
IN SECTION 19 HEREOF ONLY, AGREED AS
OF THE DATE FIRST WRITTEN ABOVE
BANK OF AMERICA, N.A.,
as Agent as Guarantied Party
By:
__________________________________
Name:
Title:
S-6
EXHIBIT A TO
SUBSIDIARY GUARANTY
Form of Counterpart for Additional Guarantors
This COUNTERPART (this "COUNTERPART"), dated as of _______,
_____, is delivered pursuant to Section 15 of the Guaranty referred to below.
The undersigned hereby agrees that this Counterpart may be attached to the
Guaranty, dated as of September 29, 2003 (as it may be from time to time
amended, supplemented, restated or otherwise modified, the "GUARANTY"; the terms
defined therein being used herein as therein defined), among the Guarantors
named therein and Bank of America, N.A., as Guarantied Party. The undersigned,
by executing and delivering this Counterpart, hereby becomes an Additional
Guarantor under the Guaranty in accordance with Section 15 thereof and agrees to
be bound by all of the terms thereof.
IN WITNESS WHEREOF, the undersigned has caused this
Counterpart to be duly executed and delivered by its officer thereunto duly
authorized as of ______________, ____.
[NAME OF ADDITIONAL GUARANTOR]
By:
________________________________________
Name:
______________________________________
Title:
_____________________________________
Address: __________________________________
__________________________________
__________________________________
A-1